Litigators of the Week: Stephanos Bibas and Glen Kulik

, The Litigation Daily

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Stephanos Bibas (left), Glen Kulik

Winning a judgment against a movie studio for copyright infringement is one of the toughest litigation assignments out there. But it might be a bit easier, thanks to a victory this week at the U.S. Supreme Court by the unusual duo of entertainment lawyer Glen Kulik of Kulik Gottesman & Siegel and professor Stephanos Bibas of the University of Pennsylvania Law School.

In a 6-3 decision issued on Monday, the Supreme Court revived a copyright case in which the daughter of deceased screenwriter Frank Petrella alleged that Metro-Goldwyn-Mayer Inc.'s 1980 film "Raging Bull" was lifted from a screenplay he wrote. The ruling will be useful to all copyright holders because it clarified that the defense of laches—which prohibits unreasonable delay in filing lawsuits—isn't a barrier to recovering damages in copyright cases filed within the statute of limitations.

Justice Ruth Bader Ginsburg wrote that permitting the case to go forward will "put at risk only a fraction of the income MGM has earned" from "Raging Bull," since there's no dispute that the screenwriter's daughter, Paula Petrella, can only seek damages for the three-year period before she brought the case in 2009, as per the statute of limitations for copyright cases. Even though "Raging Bull" came out 34 years ago, Petrella's 2009 complaint wasn't time-barred, because under U.S. copyright law each public display of the film constitutes an infringing act.

Kulik, a trial lawyer by trade, has represented Petrella from the start. Bibas, who coleads Penn's Supreme Court clinic, jumped in to handle the oral argument on a pro bono basis. Two dozen of his students contributed to briefing in the case.

There's debate over what impact the ruling will have, as Marcia Coyle of The National Law Journal reported here. Some practitioners say we'll see a mad dash of copyright holders coming out of the woodwork. Others dispute that claim, pointing out that some U.S. courts of appeals have long refused to recognize laches as a defense but haven't been bombarded with suits.

This much is clear: The fact that the high court reversed the U.S. Court of Appeals for the Ninth Circuit has a great deal of symbolic value to plaintiff-side copyright lawyers such as Kulik. The Ninth Circuit has sided with the big Hollywood studios on several crucial legal issues over the years. Because of that case law—not to mention the resource disparity between artists and the industry—not a single copyright case against a film or television studio in the Ninth Circuit has ended in a final judgment for the plaintiffs in more than 20 years (some cases have settled though, including one Kulik brought on behalf a screenwriter claiming credit for the award-winning film "Shakespeare in Love").

"There is a huge imbalance of power," Bibas said. "This ruling removes one of the many roadblocks that plaintiffs—artists, creators—face in this area."

The studios, for their part, say they win their cases so often because most suits against them are weak. Kulik readily acknowledges that frivolous idea theft cases get filed, but he says that Petrella's suit isn't one of them. He points out that despite the many hurdles erected by the Ninth Circuit, MGM's lawyers at Loeb & Loeb lost a motion for summary judgment on the merits in 2012. "'I'm ready to try this case," he said.

Bibas and his students have a lot to do with Petrella's success so far. By the time of the 2012 Ninth Circuit decision tossing her case on laches grounds, she was financially "tapped out," Kulik said. Law firms with Supreme Court practices didn't come calling. But Bibas' students offered to help with her cert petition and her merits briefs. In a presentation to Petrella, they explained what arguments they'd make and their strategy for securing amicus support. "They were wonderful," Kulik said. "Their help was very unusual, and very unexpected."

Kulik says he was happy to let Bibas handle the oral argument. "I've never argued at the Supreme Court. Stephanos has. I completely concurred with him doing it," he said. "I'm a trial lawyer. I'm not in this to make law. I'm in this to win cases."

Thanks to this week's reversal, Kulik has a shot at pulling a rare win off.

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